Unmarried fathers must think twice before registering child’s birth, experts warn

As the confusion regarding unmarried fathers now being able to register their children under their surname without the mother’s consent continues, experts say unmarried fathers should not rush to do so.

According to law experts, this is misleading as the Constitutional Court judgment applied only to maternal orphans, children who had been abandoned by their mothers and, in this case, mothers who are not documented.

Last month’s ConCourt judgment declared Section 10 of the Births and Deaths Registration Act invalid.

The apex court said the section was unconstitutional as it differentiated between children born in and out of wedlock and unfairly limited the right of an unmarried father to register his child’s birth under his surname.

However, to many it seemed unmarried fathers could now change the child’s name if they have already been registered or even insert their details in an already existing birth certificate without the mother’s consent or presence, at the department of home affairs.

Meanwhile, human rights lawyer Thandeka Chauke said the biggest misconception regarding the judgment was the surname, however, it had nothing to do with registering surnames but rather registering the child.

She also said the section did not deal with altering the child’s details, which had already been covered by the home affairs regulations, but the struggle of undocumented children who were refused their fundamental rights due to not being registered.

“It is meant for children who haven’t been registered yet and do not have birth certificates,” she said.

“So, if the father is in the picture and documented and willing to assist with the registration of the child, the court is allowing him to register the child without hassle.”

Stanley Malematja of the Centre for Child Law and Lawyers for Human Rights said if understood correctly, the judgment was actually a positive response as many undocumented children often could not have access to public services such as healthcare and education.

“Previously, Section 10 left these children stateless and … treated like foreigners in their own country and they were also deprived of their ability to access basic rights and services,” he said.

Malematja added that the court took into account there were many reasons why mothers could be absent, which explained why the ConCourt had not listed reasons that would allow the father to register the child without the mother’s consent.

“Which is why the court has declared Section 10 of the Act unconstitutional, to the extent that it draws an unfair differentiation between unmarried and married fathers,” he said.

What we need to be focusing on is the ability of unmarried fathers registering the birth of their children because the right to a birth registration is a “facilitatory right”, he said.

“Such as the right to human dignity, nationality and that connects to the right to having access to crucial public services.

“Children without birth certificates have constantly been at greater risk of exclusion from the education system,
accessing healthcare and social assistance and, crucially, to their nationality,” he added.

Family attorney Isaac Moselana said it was very misleading because the ConCourt only suspended Section 10 of the Births and Deaths Registration Act to allow parliament to legislate.

“This issue isn’t about registering the surname of the father but about giving notice of details of a newborn baby,” he said.

“Just as the given scenario, a South African unmarried father and a mother who is not ‘legal’ in the country was affected. This is not about co-parents with the children living with the father.”

– reitumetsem@citizen.co.za